Plaintiff Catherine Migliano and defendant Parler seek a discovery stay for 45 days in Migliano’s Telephone Consumer Protection Act complaint (see 2211070053) while the parties discuss settlement, “including possible mediation,” said their joint motion Friday (docket 0:22-cv-61805) in U.S. District Court for Southern Florida in Fort Lauderdale. A temporary discovery stay “would prevent unnecessary expenses and further the interests of speedy resolution of disputes and judicial economy,” it said. Against the Nov. 14 deadline for completing discovery, Migliano served written discovery on Parler, and the parties “engaged in productive and cooperative discussions that have resulted in an extension of Parler’s responses and objections deadline for that written discovery,” said the motion. The litigation is in its early stages, and both sides “jointly move for the requested stay and will not experience prejudice if the joint request is granted,” it said. Parler’s motion to compel Migliano’s dispute to arbitration “is fully briefed, pending, and awaiting the Court’s resolution,” it said. By jointly agreeing to the stay to allow settlement negotiations, including a possible mediation, to take place, neither party “waives any arguments that have been made as to arbitration,” it said.
Pro se plaintiff Lee Cunningham seeks the entry of a default judgment against Southern Power for failing to answer his Oct. 19 Telephone Consumer Protection Act complaint (see 2210200064), said his motion Friday (docket 2:22-cv-00621) in U.S. District Court for Middle Alabama in Montgomery. Southern was served with the complaint Jan. 11, but no response has been served within the time allowed by law, nor has the defendant sought additional time, said his affidavit. Cunningham of Brierfield, Alabama, alleges Southern inundated him with debt-collection calls “with such frequency as can reasonably be expected to harass.”
The third known complaint in less than four months alleging Kohl’s violated the Telephone Consumer Protection Act was filed Friday in U.S. District Court for Southern California. Plaintiff Matilde Cowen, a San Diego County resident, fended off calls from Kohl’s debt collection agents often as much as twice a day, sometimes every day, said her complaint (docket 3:23-cv-00199), which also alleges violations of California’s Rosenthal Fair Debt Collection Practices Act. Cowen estimates Kohl’s called more than 150 times in total, after receiving written notice from her lawyers revoking any prior consent to call, it said. Kohl’s didn’t comment Friday. It has defended at least one of the two recent complaints by asserting the TCPA violates the 14th Amendment’s due process clause, and also the Eighth Amendment’s protections against excessive fines (see 2301090028).
U.S. District Judge Jose Martinez for Southern Florida issued an order order (docket 1:22-cv-23945) Friday, granting Florida Attorney General Ashley Moody (R) a Thursday request for a seven-day extension, to Feb. 10, to respond to Smartbiz Telecom's motions to dismiss and to join required parties in a Telephone Consumer Protection Act lawsuit. The motion was unopposed. Florida is suing SmartBiz for allegedly violating the TCPA, the FTC's Telemarketing Sales Rule and Florida's Deceptive and Unfair Trade Practice Act. SmartBiz filed the motion to dismiss last month (see 2301230054), “vehemently” disputing all robocalling allegations.
It’s not every day that a wireless carrier faces allegations of Telephone Consumer Protection Act wrongdoing, but Stewart, Florida, plaintiff Wesley Todd asserts T-Mobile sent “repeated text messages” to his cellphone number, though it was listed on the do not call registry since May 18. The texts advertised T-Mobile’s promotional offers and encouraged Todd to visit T-Mobile’s website and buy its products, said his complaint Tuesday (docket 2:23-cv-14024) in U.S. District Court for Southern Florida in Fort Pierce. Despite Todd’s “unequivocal instructions” that T-Mobile stop all its texting, T-Mobile continued sending him messages continuously thereafter, alleges his complaint. He makes no allegations of Florida Telephone Solicitation Act wrongdoing.
Jury selection will begin Dec. 15 in the trial of pro se plaintiff Mabel Arredondo’s allegations that loanDepot inundated her with at least 18 unauthorized automated text messages in a three-month period in violation of the Telephone Consumer Protection Act (see 2210250045), said a trial preparation order signed Friday by U.S. District Judge Kathleen Cardone for Western Texas in El Paso. LoanDepot’s defenses rest partly on its assertions that application of the TCPA, as interpreted by the FCC, violates the First Amendment “because such application relies upon content-based restrictions of protected speech” (see 2212200014). The defendant also said the TCPA is “unconstitutionally vague because the restrictions imposed by the TCPA do not give a person of ordinary intelligence adequate notice of the conduct that is prohibited.”
Plaintiff Christa Simmons filed her first amended complaint Sunday alleging Procter & Gamble violated the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act by inundating her with text messages promoting its Oral-B line. Her amended complaint (docket 0:22-cv-61956), in U.S. District Court for Southern Florida in Fort Lauderdale, deletes language in her Oct. 20 original that P&G “engages in telemarketing without the requisite policies and procedures and training required under the TCPA and its implementing regulations.” It adds language missing from the original establishing the Fort Lauderdale federal court as the proper venue. Jurisdiction is proper because Simmons “alleges a national and Florida class, which will result in at least one class member belonging to a different state” than that of P&G, said the amended complaint. P&G argued Jan. 17 that Simmons’ complaint “must be dismissed in its entirety” under the 11th Circuit’s “binding precedent” in Salcedo v. Hanna because she “did not suffer an injury in fact sufficient to confer Article III standing” (see 2301180001).
Defendant-appellant DirecTV asked the 4th U.S. Circuit Court of Appeals Friday to hold their consolidated appeals in abeyance, in a joint motion with plaintiffs-appellees David Vance, Roxy Vance and Carla Shultz. Doing so would enable the execution and approval of a class settlement that “would resolve all the claims asserted in this case,” said their motion (docket 22-2041). The parties reached a settlement deal “in principle” Jan. 26, it said. They're working “on reducing this settlement to a final agreement, which they will then present to the district court for approval,” it said. There's good cause to hold these appeals in abeyance pending approval of the settlement, said the motion. “It would conserve party and judicial resources in the likely event that there will be no further litigation in this case,” it said. “If for any reason the parties do not execute a final settlement agreement or the district court does not approve it,” the parties will promptly inform the 4th Circuit and, if appropriate, ask that it set a new briefing schedule, it said. “No party will be prejudiced by a stay,” it said. DirecTV is appealing the district court’s certification of class members in a December 2017 Telephone Consumer Protection Act complaint. DirecTV also is appealing the lower court’s denial of its motion to compel plaintiff Shultz to arbitration of her TCPA claims. The 4th Circuit consolidated the two appeals in October.
Plaintiff Mary Graehl and defendant Kohl’s propose July 28 as the deadline for completing discovery in Graehl’s Nov. 14 Telephone Consumer Protection Act complaint against the retail chain, said a joint Rule 26(f) planning report Thursday (docket 2:22-cv-01341) in U.S. District Court for Eastern Wisconsin in Milwaukee. Graehl alleges Kohl’s calls persisted even after she made “a verbal cease and desist request,” said the report. The retailer asserts Graehl gave her consent to be contacted in connection with her Kohl’s credit card when she applied for her account in May, it said. Kohl’s “has no record” of Graehl asking it to stop the calls, it said. Kohl’s “denies any liability” to Graehl in this case, it said: “This matter is in its infancy, and discovery is ongoing.” The company “reserves its rights to assert additional affirmative defenses,” it said. Kohl’s answered Graehl’s complaint this month, asserting the damages she seeks under the TCPA violate the 14th Amendment’s due process clause and constitute excessive fines in violation of the Eighth Amendment (see 2301090028). It made no mention of the constitutional challenges to the TCPA in the joint report.
A status conference is set for Tuesday at 2 p.m. EST on plaintiff Catherine Migliano’s complaint that the right-leaning social media platform Parler violated the Telephone Consumer Protection Act, said a scheduling order signed Tuesday by U.S. District Judge Roy Altman for Southern Florida in Fort Lauderdale and posted Wednesday (docket 0:22-cv-61805). Counsel in Altman’s jurisdiction have the option of participating in person or virtually, his order said. A jury trial in the case is to open March 11, 2024 (see 2301130003). Parler denies Migliano’s assertions it waived its “contractual right” to arbitrate her dispute when it failed to renew its motion to compel after she filed her amended complaint.